Menu

THE SIGNIFICANCE OF AN AGGRAVATED FELONY CONVICTION IN IMMIGRATION

The term “aggravated felony” is defined in section 101(43) of the Immigration and Nationality Act (“INA”) and includes many offenses ranging from murder to simple theft. A conviction need not be classified under state law as a “felony” in order to meet the definition of “aggravated felony” set forth in INA section 101(43).

An aggravated felony conviction is a barrier to most forms of immigration relief. For example:

A lawful permanent resident (“Green Card” holder) convicted of a removable offense is frequently afforded a “second chance” through statutory relief commonly referred to as “cancellation of removal.” If convicted of an aggravated felony, cancellation of removal is not an available form of relief.

A Refugee seeking asylum is statutorily ineligible for such relief if convicted of an aggravated felony.

An undocumented immigrant seeking to adjust status does not qualify for most forms of relief if convicted of an aggravated felony.

An aggravated felon is subject to “mandatory detention” under section 236 of the INA and, even if not a flight risk or a danger to the community, is not eligible to be released from custody on bond.

One convicted of illegal re-entry into the United States after having been ordered deported faces potentially serious sentencing enhancements as a consequence of a prior aggravated felony conviction.

An attempt or conspiracy to commit an offense described in INA section 101(43) is an aggravated felony.

Under limited circumstances a waiver of an aggravated felony conviction as a grounds of inadmissibility under INA section 212(h) may be available.

In light of the serious consequences that flow from an aggravated felony conviction, any plea agreement should be closely scrutinized with INA 101(43) and other rules unique to immigration law in mind.